This section will review fundamental aspects of voting at voting places including privacy and secrecy, various special voting procedures and guarding against fraud.

While international law is clear regarding the right to vote in genuine elections, “International law is largely silent on the issue of voting procedures. This is likely in large part due to the variety of practice among States. However, election day procedures greatly impact the enjoyment of electoral rights.”[i] Therefore it is largely left to the national legal framework to establish voting procedures and to find effective ways to both make the secret ballot accessible to qualified voters and at the same time to safeguard against fraudulent voting.

1. Privacy and Secrecy

Voting procedures to ensure that qualified voters are able to exercise their right must always be vigilant to respect that, “The secrecy of the ballot is one of the great pillars on which free and fair, credible and legitimate elections rest.”[ii]  Election regulations must underline that not only is secret voting a right of the voter but an absolute obligation.[iii]

The basic international standard to be met is that voting by secret ballot should take place in the privacy of a voting booth, and in that the a manner that marked ballot cannot be seen as it is cast and cannot be later identified with a particular voter.[iv]  Where for specified reasons a voter is unable to come to a voting place to vote the legal framework must provide for alternate mechanisms that will none the less meet the test of secrecy of the ballot.

Certain countries have specified in their legislation the minimum requirements for polling stations. For example, with respect to secrecy of voting, ensuring that polling officers have clear visibility of the entrance to the voting compartment in order to verify that voters enter the compartment unaccompanied, the absence of windows, holes or other ways of observation of  the voting compartment and the requirement for a door or curtain. The custom in some countries, “of family voting -- where the head of a family casts ballots on behalf of the other members of the family -- should not be condoned.”[v] Similarly, voting at the same time as another person is in the voting compartment or voting outside of the voting booth should both be prohibited.[vi]

The provisions regulating voting procedures must ensure the proper identification of all voters and the existence of mechanisms to prevent multiple or fraudulent voting. However, the procedures should not be so complicated or cumbersome that they impede the voting process.[vii] The law should require that all ballots and voting materials are adequately safeguarded, before, during and after polling day.

As additional guarantees to the right to a free and secret vote, some legal orders require that ballots are cast and then placed in an envelope behind a curtain or inside a compartment provided at the polling station. In some jurisdictions voting in a compartment or behind a curtain is mandatory while in others it is simply optional often depending on the existence of a single ballot for all parties and candidates or separate ballot papers. With regard to the use of envelopes to protect the mark on the ballot, it could be argued that this is unnecessary, expensive, disturbs or at least delays the counting process and can be easily avoided by slightly increasing the thickness of the ballot paper. On the contrary, the mandatory use of compartments or curtains is an essential practice and with high educational value, even in those countries where the freedom to vote cannot be questioned. Another way to ensure the democratic character of the electoral process is the use of indelible ink to prevent an elector from voting more than once, as well as the use of transparent ballot boxes.

Finally, basic electoral materials should also include a record or register that reflect the accounting of ballots and the election results and the various incidents that occurred at each polling station. To the extent that the official tabulation and the allocation of seats are usually done based on these records and not directly on a recount of the ballots, these documents acquire a special significance for the electoral process. Taking into account that in many countries these documents are completed by citizens without special knowledge in the field, it is necessary that the records have a simple and understandable form. This need increases in inverse proportion to the level of social and cultural development of the country concerned. However, it is worthy of attention because this aspect does not always attract the attention it deserves by electoral management bodies and international organizations monitoring elections.

The fact that these records are usually filled at least in duplicate (even in more copies where representatives of political parties or candidates can have a copy) and the legal framework provides for alternative procedures aiming to ensure that they reach the electoral authorities on polling day reflects the important role of these documents.

The legal framework should be sufficiently flexible to allow the use of technological innovations in aspects related to the voting and vote counting procedures, such as the use of electronic machines for recording and counting votes. However, this degree of flexibility should be regulated by establishing requirements for approval and control before the use of new technologies.[viii]

2.  Special Voting Provisions

Electoral laws may contain special mobile or mail voting provisions to facilitate voting by persons with disabilities, people in hospitals or prisons, voters abroad (for example, citizens abroad for professional reasons, diplomats or voters displaced by war), or voters who cannot personally reach the polls due to any other significant reason.

Such voting provisions may be available to a single individual, such as a housebound, or incapacitated voter or a person who is abroad on business; or to a class of voters, such as diplomats, police, the military or other security forces; or to an entire community, such as a hospital, or other institution or persons displaced due to the outbreak of war. However applied, these provisions must not be discriminatory and must be applied uniformly to all voters who are in the same situation and should be designed to prevent abuse.[ix]

Special voting provisions should also strive to respect the dignity of the person.  For example, in the case of disabled or illiterate voters, “Wherever possible …steps should be taken to enable them to vote without assistance.”[x]  At other times, this may not be practical and the voter may require the assistance of another.  In such cases, the legal framework should consider who may qualify to assist the voter (e.g. should political representatives be allowed) and how many times a single person may assist other voters.

Where the law specifies that qualified voters may vote other than at a designated voting place there are generally a variety of provisions including the following:

• Mobile voting, where polling officials transport a mobile ballot box to voters who

cannot attend their designated polling station (e.g., ill or elderly voters can cast

their ballot at home or a hospital). Mobile voting usually takes place on election

day but may also happen in advance;

• Postal voting, where voters cast their ballots by post in advance of election day;

• Early voting, where voters unable to attend their designated polling station on

election day (e.g., election officials or security personnel) cast their ballot early;

• Prison-voting, where prisoners who retain suffrage cast their ballots in special

polling stations within the prison;

• Out-of-country voting, where expatriate citizens entitled to suffrage cast their ballots

at special polling stations, often at their country’s embassy or by post; and

• Military voting, where members of the armed forces vote at a designated local

civilian polling station or in their barracks.[xi]

In the application of these provisions, all possible and reasonable steps should be taken to continue to safeguard the secrecy and privacy of the vote and other procedures that would otherwise be in effect at a voting place.  For example, where a mobile poll is used, the presence of party or candidate representatives together with voting officials will help to ensure the integrity of the process.   Where mail ballots are employed then a double envelope system should be used so that the inner envelope in which the ballot is deposited is a blank envelope thereby preventing identification of the voters.[xii]  In the case of early voting, for example, steps need to be taken to ensure that the name of the voter is marked as having voted so that the voter may not vote again either at another early voting place or their regular voting place on election day.

It is generally accepted that the legal framework may provide that members of the army or the police forces can exercise their right to vote while on active duty. While it is important to protect the voting rights of members of the army or the police, the relevant legal provisions should be carefully designed to prevent abuse.

Furthermore, the legal framework often allows the establishment of polling stations in military units located in remote areas far from any population center. While in some cases the adoption of such measures may be inevitable, it should be accompanied by an express provision specifying that it applies only in exceptional situations and, where possible, members of the military and the police should vote in advance. Members of the armed forces who are not on active duty on polling day must vote at an ordinary polling station, without wearing uniform and carrying arms.[xiii]

 The principle of voter accommodation is commendable, however related provisions should be written to prevent abuse and fraud. To minimize this possibility and safeguard the integrity of the special voting provisions, the legal framework should include the following:

• A process to clearly identify voters eligible to use alternative voting provisions and to prevent double voting.

• Special voting provisions should only be applied in well-defined situations, e.g., in cases where it is not physically possible for the voter to travel to a regular polling station to vote; however, some jurisdictions might provide exceptions to this for special reasons, for example, allowing a large section of its voters to vote by mail.

• Representatives of parties and candidates as well as election observers should be permitted to monitor special voting stations.

• The number of ballot papers with serial numbers and other security features used and the number later returned, should be formally and transparently recorded.

• The number of ballot papers issued should correspond with the number of requests received, plus a specified small number of extra ballots to allow for voters who may spoil their ballot paper.

• The names and number of requesting voters who have used or are using the special provisions should be recorded in polling-station and other protocols in order to avoid double voting and to identify particular areas where the proportion of votes cast is unusually high, which may point to the occurrence of fraud.[xiv]

Once voting takes place outside of the confines of a voting place in particular it is evidently more difficult to control, “Therefore, an assessment of the advantages of special voting provisions must be weighed against the ability to regulate them properly, securely and transparently, as well as their effecton degree of confidence in the overall election process.”[xv]  Special voting provisions are enfranchising and a practical necessity but so too must the legal framework strive to safeguard the integrity of the process.

Electronic voting processes likely have significant potential applications to some Special Voting Provisions, and may ultimately pave the way for more general application of electronic voting.